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Refining the contours of the First Amendment in public sector unions – Davenport v. Washington Education Association

By J. DeVoy

In 2007, the United States Supreme Court upheld a Washington law requiring public sector union members to opt-in for their association dues to be used by the union for election-related activities and speech. Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007).  Without this mandated opt-in, the public union was prohibited from devoting a member’s fees to any electoral purpose. Id. at 190.  The court limited its holding to public sector unions, although the text of the statute could facially be applied to both public and private unions. Id.

Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. Id.

This portion of the holding reinforces the unique role of public sector unions, especially when balancing constitutional concerns.  Because public unions are governed by the state and their employees act with the government’s imprimatur, their actions are within the reaches of the United States Constitution and Bill of Rights. See Id.

I. Private Sector Precedent

Precedent from disputes between private unions and their members indicates that this is not a universal proposition: union members are not given a unilateral veto over union expenditures and activities because they disagree with their money being spent in a certain fashion.  In Communications Workers v. Beck, 487 U.S. 735, 762-63 (1988), the Supreme Court authorized the union to spend dues money pursuant to its obligations as a bargaining representative over a represented non-member’s objection.  Expenditures were only authorized over objection for that purpose, though, and could not be made for the union’s political goals. Id.

Similarly, in Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 450-51 (1984), the Supreme Court held that expenses for materials reporting on the union’s activities as representatives’ exclusive bargaining representatives can be paid with the dues of nonmembers despite their objection.  The court specifically struck down the rebate mechanism used by the union in Ellis, which provided that the union would repay represented non-members who objected to a union political expense their share of the total expense. Id. at 443.  Though the Ellis court considered the potential for anticipatory dues reductions for represented nonmembers, or holding dues in escrow, it ultimately provided no conclusive guidance on those provisions’ legality, finding it sufficient to strike down the union’s rebate provision. Id.

II. Into the Public Sector

This trend came to a head in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  where the Supreme Court prohibited the public union’s use of nonmember fees for purposes outside of collective bargaining, contract administration and grievance adjustment – even when alternative uses were not strictly political.  Abood is remarkable for extending the Beck and Ellis decisions to public unions.  While the prior decisions concerned private unions, the Supreme Court found the principles within those opinions applied identically to public sector unions; the role of the government in the unions’ representation and their members’ employment was immaterial in such situations.

The Abood decision was further solidified in Chicago Teachers Union v. Hudson, 475 U.S. 292, 306-08 (1986).  In Hudson, the union controlled the entire process of collecting, administering and reducing members’ agency fees, despite being an interested party at every step of that transaction. Id. at 308.  The court found that there were inadequate protections where the union did not disclose its expenditures for collective bargaining purposes, but instead revealed only the amount it had spent on purposes that did not benefit “dissenting nonmembers.” Id. at 306-07.

Although the union discounted nonmembers’ annual dues by 5%, the court found there was no adequate explanation for doing so, and thus such a reduction did not pass constitutional muster. Id. at 307.  Indeed, the 95% of agency fees still paid by nonmembers may have gone to speech they opposed and did not authorize.  The Supreme Court ultimately established three requirements for public unions’ collection of agency fees:

-The union must provide an adequate explanation of the basis for the fee

-The union must provide a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker, and

-The union must have an escrow for the amounts reasonably in dispute while such challenges are pending. Id. at 310.

The “adequate explanation” required by Hudson is commonly referred to as a “Hudson packet.”  Davenport, 551 U.S. at 177.  It must be supplied to all nonmembers represented by the union and, under Washington’s law, was supplied biannually to nonmembers represented by a public union. Id.

An important distinction between union purposes arises from these holdings.  While there is a First Amendment issue where unions spend represented nonmembers’ dues on political purposes over their objections, these same represented nonmembers have no First Amendment interest in the union’s operation as a contract administrator and collective bargaining agent.  As noted in Abood, this distinction arises in the public union context because involuntary political support through money may “interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” 431 U.S. at 222.

Fortified in Hudson, this position coalesced into the three requirements set forth by the Supreme Court.  By requiring information explaining agency fees’ bases to be sent to all represented employees, the Supreme Court ensured that the represented would be apprised of how their dues were spent – especially on political matters, to which nonmembers could object.  The additional requirements, of a challenge to the fee before an independent decision-maker and escrow for funds in dispute, further protected the First Amendment rights of nonmembers.  The first of these provisions, requiring objections be heard before an impartial decision-maker, upheld the due process rights of nonmembers in exercising their First Amendment rights, assuring that their will would not be thwarted by union control.  The second assures that neither represented nonmembers’ dues nor interest on them can be applied toward political aims – speech, ultimately – with which the represented non-member disagrees.

III. How Davenport Was Decided

These provisions are found in the Washington statute at issue in Davenport.  By requiring represented non-members to opt-in to political spending within unions, and acting in concert with provisions for information about fees to be distributed and amounts in dispute being held in escrow, the protections the Supreme Court previously established were preserved by the statute.

From a policy perspective, opt-in is more favorable to represented non-members who may otherwise object to a union’s political spending.  Under this regime, their political autonomy is presumed, though they can assent to the union’s political speech and financially contribute to it.  In contrast, the de facto opt-out system established in prior case law benefits unions, as represented non-members must object to the use of their funds for the union’s political goals.  Although the Supreme Court has ratified this practice as valid with some qualifications, it places the burden of seeking political autonomy on the represented non-member.  Even if these non-members have no interest in politics, the presumed contribution of agency fees effectively takes money out of their pockets that otherwise would not have gone to political speech or association.

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